LANGUAGE

Cauvin v. Philip Morris Limited & Ors

This case is one in a series of procedural decisions relating to the same proceedings. In the previous decision, Bell J struck out parts of the plaintiff's statement of claim (see: Cauvin v. Philip Morris Limited & Ors [2003] NSWSC 631 (1 August 2003)). This decision relates to an application by the defendant tobacco companies for security for costs and, in the event that the plaintiff failed to pay such security, that her claim be dismissed.

The plaintiff alleged that the defendant tobacco companies conspired to engage in misleading or deceptive conduct in contravention of the Trade Practices Act (Cth) 1974 and the various state Fair Trading Acts. In particular, she alleged that the defendants had colluded to promote the benefits and pleasures of smoking and to deny or minimise the risks associated with smoking, including the likelihood of contracting smoking-related diseases, and the risk of becoming addicted to nicotine. She made the claim on her own behalf and on behalf of "other persons" who smoked, or may smoke, cigarettes, and as a consequence be exposed to the likelihood of contracting smoking-related disease.

The plaintiff admitted that she was impecunious. Ordinarily, an impecunious personal litigant resident within jurisdiction would not be made subject to a personal order for security for costs. However, the defendant tobacco companies argued that the ordinary rule should not apply because the plaintiff was seeking to enforce the rights of potentially millions of people. Moreover, they said that any one or more of that substantial number of persons, who were not impecunious, might bring the same or similar proceedings. Therefore it could not be said that an order for security would prevent the merits of the controversy from being determined.

Bell J rejected the defendants' application, finding in favour of the plaintiff. In doing so Bell J found that the plaintiff's case was arguable, regularly commenced, not vexatious and brought by a natural impecunious resident within jurisdiction.